by Thomas Lundy

(July 2000)

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    For decades state law has been the primary hope for criminal defendants seeking jury trials and related protections with respect to sentencing factors such as enhancements and prior convictions. (See e.g., People v. Wims (1995) 10 C4th 293 [41 CR2d 241]). However, Apprendi v. New Jersey (6/26/00, No. 99-478) 530 US 466 [147 LEd2d 435; 120 SCt 2348] has drastically altered the landscape in this area by bringing the federal constitution into play. The implications are significant for many jury trial issues, including jury instructions.

1. Non-Recidivist Sentencing Factor Which Increases The Defendant's Sentencing Exposure.

    McMillan v. Pennsylvania (1986) 477 US 79 [91 LEd2d 67; 106 SCt 2411] concluded that the Winship standard did not apply to a judge’s finding by a preponderance of the evidence of firearm possession which subjected the defendant to a mandatory term within the sentencing ranges otherwise prescribed. The Court observed that the result might have been different if the firearm possession had exposed the defendant to a sentence beyond the maximum that the statute otherwise set without the firearm possession. (477 US at 88; see also People v. Wims (1995) 10 C4th 293, 324 [41 CR2d 241], Kennard, J., dissenting.)

    Jones v. U.S. (1999) 526 US 227 [143 LEd2d 311; 119 SCt 1215] addressed, in dicta, the question left unresolved in McMillan. Jones concluded that a sentencing factor which exposes a defendant to a significantly greater range of punishment would "raise serious constitutional questions" if imposed without "the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." (526 US at 251.)

    In so doing, the Court distinguished Almendarez-Torres v. U.S. (1998) 523 US 224 [140 LEd2d 350; 118 SCt 1219] , because it involved only the issue of whether the sentencing factor must be charged and because it dealt with recidivist statutes. Jones also distinguished Spaziano and Walton, which dealt with choosing punishment between existing choices in death penalty cases rather than "raising the ceiling of the sentencing range available." (118 SCt at 1228.)

    Apprendi v. New Jersey (6/26/00, No. 99-478) 530 US 466 [147 LEd2d 435; 120 SCt 2348] expressly adopted the view foreshadowed in Jones: any fact (other than a prior conviction) that increases the penalty beyond the statutory maximum is an element of the charge to which federal constitutional protections, including trial by jury and proof beyond a reasonable doubt, apply. This rule is grounded upon the 14th Amendment right to due process and the 6th Amendment right to trial by jury: "[P]ractice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond a reasonable doubt." (Apprendi, 120 SCt at 2359.) "‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ [Citation.]" (Apprendi, 120 SCt at 2363.)

2. Non-Recidivist Sentencing Factor Resulting In Great Sentencing Disparity ("Tail Wagging The Dog").

    McMillan recognized that legislatures do not have "unbridled power to redefine crimes to the detriment of criminal defendants...." (477 US at 86.) McMillan suggested that the legislature might lack power to remove a factual issue from the jury’s consideration by defining the issue as a mere "sentencing consideration" if a finding on that issue would expose the defendant to substantially "greater or additional punishment." (Id. at 88.) That is, the sentencing enhancement cannot become "a tail that wags the dog of the substantive offense." (Ibid.)

    Apprendi incorporated the "tail wagging" doctrine into its rejection of the prosecution’s argument: "[I]t can hardly be said that the potential doubling of one’s sentence--from 10 to 20--has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as ‘a tail which wags the dog of the substantive offense.’ [Citing McMillan.]." (Apprendi, 120 SCt at 2365.)

3. Federal Right To Trial By Jury As To Prior Conviction.

    Under California law, most determinations regarding the proof of prior convictions have been removed from the jury. (See People v. Kelii (1999) 21 C4th 452, 454-456 [87 CR2d 674]; see also People v. Wiley (1995) 9 C4th 580, 590-92 [38 CR2d 347].)

    However, Apprendi v. New Jersey (6/26/00, No. 99-478) 530 US 466 [147 LEd2d 435; 120 SCt 2348] provides a basis upon which these cases may be challenged. Apprendi hinted that its rule may also be applied to prior convictions by observing that the logic of McMillan v. Pennsylvania (1986) 477 US 79 [91 LEd2d 67; 106 SCt 2411] and Almendarez-Torres v. U.S. (1998) 523 US 224 [140 LEd2d 350; 118 SCt 1219] may no longer be viable.

    The court indicated that McMillan may be ripe for reconsideration: "[W]e reserve for another day the question whether stare decisis considerations preclude reconsideration of [McMillan]." (Apprendi, 120 SCt at 2361, fn 13.)

    Moreover, both the majority and concurring opinions suggested that a prior conviction which triggers increased punishment should be considered an element of the charge and that Almendarez-Torres is incorrect in this regard. Majority opinion: "Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today ...." [Emphasis added.] (Apprendi, 120 SCt at 2362, majority opinion.)

    Concurring opinion: "[O]ne of the chief errors of Almendarez-Torres--an error to which I succumbed--was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender’s sentence. [Citation.] For the reasons I have given, it should be clear that this approach just defines away the real issue. What matters is the way by which a fact enters into the sentence. If a fact is by law the basis for imposing or increasing punishment--for establishing or increasing the prosecution’s entitlement--it is an element. (To put the point differently, I am aware of no historical basis for treating as a nonelement a fact that by law sets or increases punishment.) When one considers the question from this perspective, it is evident why the fact of a prior conviction is an element under a recidivism statute. Indeed, cases addressing such statutes provide some of the best discussions of what constitutes an element of a crime." (Apprendi, 120 SCt at 2371 [Thomas, J. concurring.]

    Additionally, an argument may still be available regarding the right to trial by jury as to prior convictions based on McMillan v. Pennsylvania (1986) 477 US 79 [91 LEd2d 67; 106 SCt 2411] in cases involving substantial enhancement of punishment such as Three Strikes cases. In such cases it is often not the conviction of the principal offense but the finding of the prior convictions that predicates extreme punishment. (For example, in California, the punishment in Three Strikes cases is 25 years to life--the same sentence given for first degree murder without special circumstances.) Hence, the rationale of McMillan should apply since the Three Strikes law has become "the tail that wags the dog of the substantive offense." (McMillan, 477 US at 88; see also FORECITE PG VII(C)(32)(2); Apprendi v. New Jersey (6/26/00, No. 99-478) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2365] ["tail wagging the dog" applies to sentencing factor which increases the term from 10 to 20 years].) Simply stated, it is irrational to provide a jury trial for the substantive offense--which alone might only expose the defendant to a few years in prison, if that--and deny the right as to the prior convictions which, if proven, will imprison the defendant for the rest of his life.

    [For briefing on the applicability of Apprendi to Kelii see "Briefing" below this article.]

4. Applicability Of Double Jeopardy To Sentencing Factors.

    The rationale of Apprendi directly contradicts People v. Hernandez (1998) 19 C4th 835, 836-837 [80 CR2d 754] which held that federal double jeopardy principles do not apply to sentencing determinations. If a sentencing factor is an element to which the federal constitutional rights of due process and trial by jury apply, then double jeopardy principles should apply as well.

    Additionally, since Apprendi suggests that there is no logical distinction between recidivist and non-recidivist sentencing factors (see FORECITE VII(C)(32)(3)), it provides a basis for challenging Monge v. California (1998) 524 US 721, 727-729 [141 LEd2d 615; 118 SCt 2246] and People v. Monge (1997) 16 C4th 826, 844-845 [66 CR2d 853], which held that double jeopardy principles do not apply to prior convictions which increase the defendant’s sentence.

5. Additional Briefing.

    For additional briefing on Apprendi and Jones see "Briefing" below this article.

Conclusion

    In sum, the Jones/Apprendi analysis provides a basis for arguing that sentencing factors should be accorded the same federal constitutional protections as other elements of the criminal offense. Only time will tell whether this is how things actually play out. For this reason, it will be important to track the expected flood of cases which will seek to interpret and apply the Jones/Apprendi analysis.

    Meanwhile, it will be interesting too see whether Apprendi meets its potential of being one of the greatest watershed cases in recent years.

BRIEFING

CAVEAT: The briefing below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.

BRIEF NUMBER 1:

    Respondent has conceded that the trial court failed to instruct on all elements of the enhancement charged under Penal Code section 12022.5(b). (RB 43.) The parties differ, however, on the appropriate standard of prejudice for evaluating that error. Appellant has contended that the failure to instruct on an element of the enhancement must be reviewed for federal constitutional error under Chapman v. California (1967) 386 U.S. 18. The People have responded that the error is only one of state law and is therefore reviewable under People v. Watson (1956) 46 Cal.2d 818. (See AOB 48-53; RB 43-56.)

    On March 24, 1999, the United States Supreme Court issued an opinion in Jones v. United States (1999) ____US ____, 99 C.D.O.S. 2116, 99 DJ D.A.R. 2721, 1999 WL 155688, which compels the conclusion that Chapman is the appropriate standard. Upon appellant's application, this court permitted appellant to file a supplemental brief explaining the relevance of Jones.

A. Legal Landscape Before Jones

    Prior to the decision in Jones v. United States, the law in California provided that the federal constitutional guarantees of notice, proof beyond a reasonable doubt and jury trial applied only to offenses, not to sentencing enhancements. People v.Wims (1995) 10 Cal.4th 293.) The jury in Wims convicted the defendant of robbery and found true the allegation that defendant used a deadly weapon in the commission of the felony in violation of Penal Code section 12022(b). Defendant argued that the enhancement finding had to be reversed because the trial court failed to instruct the on its essential elements. The California Supreme Court held that, while the failure to instruct was error, it did not violate the federal constitution. In reaching this conclusion, the court rejected defendant's contention that enhancements (which impose prison time for prohibited conduct) are the functional equivalent of crimes and therefore deserve the same constitutional protection. (Id. at p. 304-309.) The court reasoned that the enhancement provision "merely focuses on a circumstance involved in the commission of some felonies (i.e., the use of a 'deadly or dangerous weapon') that the Legislature apparently believed justifies an additional penalty to that prescribed for the underlying felonies." (Id. at p. 305.) The court noted that previous United States Supreme Court cases had never applied the Sixth Amendment's right to jury trial to matters relating to the "appropriate punishment." (Ibid.) The Wims majority relied in particular on McMillan v. Pennsylvania (1986) 477 U.S. 79, where the high court held that the right to jury trial did not apply to a sentencing provision that removed a judge's discretion to sentence within the given statutory range when evidence showed that the defendant possessed a firearm in the commission of the offenses (Id. at p. 305-306.)

    The dissent in Wims argued that the right to jury trial did apply because sentence enhancements "are more like criminal offenses than sentencing factors in their consequences to the defendant." (Id. at p. 323.) The dissent distinguished McMillan v. Pennsylvania on the ground that the statute there only limited the sentencing court's discretion in selecting a penalty within the range already available to it, while the firearm enhancement in Penal Code section 12022.5 "increase[s] a defendant's sentence beyond the maximum sentence prescribed for the underlying offense, thereby exposing the defendant 'to greater additional punishment."' (Id. at p. 324.)

    The majority's determination that the federal right to jury trial dict not apply to enhancements dictated that the error was merely one of state law, reviewable under the forgiving standard of People v. Watson (1956) 46 Cal.2d 818. (Wims, supra, 10 Cal.4th at pp. 314-315.) This was the state of the law prior to Jones.

B. Jones v. United States

    The defendant in Jones was charged with carjacking under a federal statute which provided that a person possessing a firearm who "takes a motor vehicle ... by force shall- (1) be ... imprisoned not more than 15 years ..., (2) if serious bodily injury results, be ... imprisoned not more than 25 years ..., and (3) if death results, be imprisoned for any number of years up to life..." Neither the indictment nor the jury instructions made any reference to the factual matters in subsections (2) or (3). After being found guilty, however, the trial court imposed a 25 year sentence because one victim suffered serious bodily injury. The trial court rejected the contention that serious bodily injury was an element of the offense and the failure to submit it to the jury violated the Sixth Amendment. (Jones, supra, 99 C.D.O.S. at pp. 2116-2117.)

    The Supreme Court reversed, reasoning that, in order to be consistent with the constitution, the statute had, to be interpreted as enumerating separate substantive offenses to which the right to jury trial and due process apply. If the statute were interpreted as containing mere penalty provisions rather than substantive crimes, it would be open to serious constitutional doubt. As the court explained:

If serious bodily injury were merely a sentencing factor ... then death would presumably be nothing more than a sentencing factor under subsection (3).... If a potential penalty might rise from 15 years to life on a nonjury determination, the jury's role would correspondingly shrink from the significance usually carried by determinations of guilt to the relative importance of low-level gatekeeping: in some cases, a jury finding of fact necessary for a maximum 15-year sentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury's function to a point against which a line most necessarily be drawn.

(Id. at p. 2119.)

    Significantly, the majority in Jones agreed with the analysis of the Wims dissent as to the application of McMillan v. Pennsylvania. The court noted that McMillan only disposed of the question whether the right to jury trial applied to a factor affecting the choice of a sentence within a statutory range. McMillan did not resolve the question whether the jury trial right applies to proof of facts which "expose[] a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact." (Ibid.)

    The Supreme Court thus held that, to avoid grave constitutional difficulties inherent in a contrary interpretation of the statute, the government was obligated under the federal constitution to give the defendant notice of the charge, provide a jury trial and prove the charge beyond a reasonable doubt. (Id. at p. 2120.) As an error of federal constitutional dimension, the failure to instruct on an element is subject to the Chapman standard. (See United-States v. Gaudin (1995) 515 U.S. 506.)

C. Application Of Jones To The Error In Appellant's Trial

    After Jones, the analysis for determining whether a failure to instruct on elements of an enhancement must proceed along the following lines: If the sentencing enhancement only limits the sentencing court's discretion to impose a sentence within a statutory range, the failure to submit the elements to the jury does not violate the federal constitution. If, however, the enhancement exposes the defendant to a penalty in addition to the statutory maximum for the underlying offense, then it must be treated as a separate, substantive offense; the failure to instruct on the elements of the enhancement would then violate the federal constitution.

    The enhancement at issue in the instant case is of the latter variety. It exposed appellant to a term of imprisonment in addition to that for the underlying offense. Indeed, the sentence range for involuntary manslaughter was 2,3 or 4 years. (Pen. Code § 193(b).) The additional term for the enhancement was 5, 6 or 10 years. (Pen. Code § 12022.5(b)(1).) Thus, as in Jones, the enhancement in appellant's case exposed him to a substantial, additional prison term of up to 10 years. The effect of the enhancement on appellant's actual sentence (3 years for the involuntary manslaughter and 6 years for the enhancement), was to triple appellant's prison term.

    Under these circumstances, a finding that the legislature intended the enhancement to be merely a sentencing factor for which there are no due process protections would place the constitutionality of the enhancement in grave constitutional doubt. Under both federal and California law, a statute must be interpreted in a way that "will render it valid in its entirety, or free from doubt as to its constitutionality...... make (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509. See generally Witkin & Epstein, 1 Cal.Crim.Law § 31 at pp. 40-41.) This doctrine dictates that the court find, as in Jones, that the enhancement charged in appellant's case be treated as a substantive offense with the attendant due process protections, including, the right to jury trial. The failure to instruct on all the elements would therefore be reviewed under Chapman.

    Appellant recognizes that in Wims, the California Supreme Court stated that, in enacting the enhancement contained in Penal Code section 12022(b), the legislature did not intend to enact a substantive offense rather than a sentencing provision. (People v. Wims, supra, 10 Cal.4th at p. 306.) If this court believes that it is bound by Wims' determination of legislative intent that the enhancement not be treated as a substantive offense, its only alternative in light of Jones would be to confront the constitutionality of the sentencing provision. Jones leaves little doubt as to the outcome of such a constitutional challenge: Because Penal Code section 12022.5(b)(1) exposes the defendant to a substantial additional prison term, it is the functional equivalent of an offense and the due process protections must apply. In their absence, the statute is unconstitutional

    Appellant submits, however, that it is unnecessary for this court to reach the constitutional question. The Supreme Court’s declaration of legislative intent in Wims was clearly based on a mistaken notion of the reach of the due process clause as set forth in McMillan v. Pennsylvania. (See Wims, supra, 10 Cal.4th at pp. 304-309.) Jones has now undermined that analysis of legislative intent, and this court may therefore reevaluate the question in light of controlling United States Supreme Court authority.

    If the court determines, in light of Jones, that the Sixth Amendment right to jury trial applies to Penal Code section 12022.5(b), then the trial court's failure to instruct on all elements of the offense embodied in Penal Code section 12022.5(b) was an error of federal constitutional dimension that must be evaluated under Chapman. The error was not harmless beyond a reasonable doubt and the enhancement should therefore be reversed.

    If, on the other hand, the court determines that the legislature intended section 12022.5(b) to be simply a sentencing factor without due process protection, the statute should be declared unconstitutional. Again, the result would be reversal of the sentencing enhancement.

Dated: April 26,1999

BRIEF NUMBER 2:

CONSTITUTIONAL ERROR

    Respondent does not directly address the Sixth Amendment issue, but relies upon People v. Kelii (1999) 21 Cal.4th 452, which touches on the issue. (RB 8-9.) Kelii concluded that a criminal defendant has "no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement." (Id., at p. 455, quoting People v. Wiley (1995) 9 Cal.4th 580, 585-589.) Wiley in turn relied upon certain federal authorities in reaching the conclusion that the federal Constitution does not confer a right to jury trial for the determination of sentence enhancement allegations. (Id., at p. 585, citing McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 and Spaziano v. Florida (1984) 468 U.S. 447, 459.)

    An examination of McMillan reveals that it relied upon Spaziano without any further analysis of the issue. (McMillan, supra, 477 U.S. at p. 93.) Spaziano was a capital case where the jury found that the defendant was guilty of a crime which potentially exposed him to death or to life imprisonment. The jury recommended life imprisonment, but under Florida law, the trial court was entitled to "override" the recommendation of the jury, and that is precisely what the judge did. The Supreme Court was called upon to determine whether the determination of punishment in a capital case must always be made by a jury. (Spaziano, supra, 468 U.S. at p. 458.) The high court analogized the sentencing phase of a capital case to the sentencing proceeding of a non-capital case, and concluded that "[tlhe Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue." (Id., at p. 459.)

    Wiley and Kelii have taken the language from Spaziano and given it a broad interpretation, assuming that there is no right to jury trial in any sentencing proceedings, no matter what the circumstances. In Jones v. United States (1999) 526 U.S. 227 [119 S. Ct. 1215] the United States Supreme Court has undermined that assumption. In Jones, after the defendant was found guilty of car jacking, the trial court was called upon to determine whether the crime involved "serious injury". A true finding would increase the maximum penalty from 15 years to 25 years. (Id., at pp. 1218, 1224.) Although the high court relied primarily on statutory analysis in deciding that such a determination could not be made by the court, it also gave a strong warning about the constitutionality of such a procedure.

    The high court made a distinction between "ordinary" factual determinations that may normally be made by a judge in sentencing, and those determinations which trigger the Sixth Amendment. An "ordinary" factual determination is one which bears upon the actual sentence which the defendant will receive within the permissible range inherent in the underlying conviction. (Jones, supra, 119 S. Ct. at p. 1224.) Such a sentencing determination may be made by a judge alone, and does not implicate the Sixth Amendment.(Id., pp. 1223-1224.)McMillan (and, by implication, Spaziano) fell within this category. (Id., at p. 1223.)

    However the Jones majority noted that McMillan raised a question of whether the Sixth Amendment might be implicated where the factual finding "exposed a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact." (Jones, supra, 119 S. Ct. at pp. 1223-1224, citing McMillan, supra, 477 U.S. at p. 88.) As McMillan points out, the statute at issue gave "no impression of having been tailored to permit the [sentencing finding] to be a tail which wags the dog of the substantive offense." (Ibid.)

    The Jones majority emphasized the "tail wagging the dog" analogy, and noted that if the trial court could determine a "sentencing factor" that could raise the maximum punishment from 15 years to a maximum of life imprisonment, then the jury's role would "correspondingly shrink from the significance usually carried by determinations of guilt to the relative importance of low-level gate keeping......" (Jones, supra, 119 S. Ct. At p. 1224.) The court related ample history to explain that the framers of the Constitution were well aware of the inherent tension between the power of the judge and that of the jury, and concluded that "diminishment of the jury's significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled." (Id., at p.1226; see also pp. 1225-1226.)

    The instant case demonstrates how much a sentencing factor can become the "tail that wags the dog." Without the prior "strikes", the conviction would carry a maximum punishment of three years. But with two or more prior "strikes", appellant was exposed to (and received) a sentence of 25 years to life. The jury's role was thus reduced to a "low level gatekeeper" which cannot be tolerated under the Sixth Amendment.

BRIEF NUMBER 3:

    Recently, the U.S. Supreme Court decided a seminal case which is highly relevant to this litigation. In Apprendi v. New Jersey (June 26, 2000, 99-478) ___ U.S. ___ [2000 D.A.R. 6749], the court unequivocally held that a defendant has a constitutional right to a jury trial with respect to enhancements which increase the penalty for a crime beyond the prescribed statutory maximum for the offense. This holding directly impacts on two issues in this case.

    First, a primary issue in this case is whether appellant’s life sentence under Penal Code section 667.7 must be reversed since the trial court failed to instruct on an element of the Penal Code section 12022.7 enhancement. The People have contended that this error must be reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. However, as Apprendi now makes clear, the error must be assessed under the standard of Chapman v. California (1967) 386 U.S. 18.

    Second, appellant has contended that the trial court erred by substituting its own factual findings concerning a prior conviction for those previously made by the jury. Once again, Apprendi establishes that this error is violative of the federal Constitution.

    In short, as is more fully discussed below, Apprendi is of great significance to the resolution of the instant case. Thus, appellant now turns to a more expansive discussion of the importance of Apprendi.

    In order to obtain a life sentence under Penal Code section 667.7, it was incumbent upon the People to prove that appellant had suffered two prior convictions for "assault with a deadly weapon" or "assault with a force likely to produce great bodily injury." (Section 667.7, subd. (a).) Appellant admitted that he had suffered one such prior conviction. However, as to the second alleged prior conviction, appellant asserted his right to a jury trial.

    At the jury trial, the jury returned a true finding on the section 667.7 allegation. (CT 915.) Subsequently, appellant filed a brief in which it was contended that the jury’s verdict demonstrated its factual finding that appellant "was convicted of Assault with a Deadly Weapon, to wit: Hands and Feet." (CT 927.) Since such a finding would be invalid insofar as hands and feet do not qualify as a deadly weapon, appellant asked the trial court to vacate the verdict. (CT 926-928.)

    The trial court refused to do so. Instead, the court made its own factual finding that the prior conviction involved the use of force likely to produce great bodily injury. (RT 1142.) Based on this new factual finding, the court imposed a life sentence under section 667.7.

    Importantly, appellant registered an objection to the court’s de novo factual finding. (RT 1137-1138.) Specifically, appellant objected that the court had no authority to reject the jury’s factual finding. (RT 1137-1138.)

    Previously, appellant has advanced the contention that the trial court violated his right to a jury trial by making its own factual finding. (AOB 35-38, ARB 21-28.) Although the matter is far from clear, it would appear that the U.S. Supreme Court would find a Sixth Amendment violation on the instant record. [Footnote 1]

    As was noted above, the U.S. Supreme Court has definitively held that a defendant has a constitutional right to a jury trial regarding conduct enhancements. (Apprendi, supra, 2000 D.A.R. at p. 6754.) In reaching this conclusion, the court acknowledged that its earlier cases had treated prior convictions as falling outside the right to a jury trial. (See Jones v. United States (1999) 526 U.S. 277 [143 L.E.2d 311, 326, fn. 6].) Thus, the court declared in Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 2000 D.A.R. at p. 6754, emphasis added.)

    In appellant’s view, a careful reading of Apprendi establishes that the right to a jury trial regarding a prior conviction applies where, as here, the trier of fact must adjudicate the conduct underlying the prior conviction. In this regard, Apprendi notes that the historical practice in England was to require the jury to adjudicate all of the facts requisite to punishment. (Apprendi, supra, 2000 D.A.R. at p. 6752.) Thus, whenever the defendant disputes "any fact" which will elevate his sentence beyond the statutory maximum for the offense committed, the right to a jury trial applies. (Id., at p. 6754.) The sole exception to this rule is the mere "fact of a prior conviction, . . . ." (Ibid.)

    In the case at bar, the prosecution was required to prove more than the mere "fact" that appellant had a prior conviction. Under section 667.7, the prosecutor had to show appellant’s actual criminal conduct (i.e. that he had used force likely to produce great bodily injury). Indeed, this reality is incontrovertible since the judge personally reviewed the preliminary hearing transcript in order to make his factual finding. (RT 1141-1142.) Moreover, in this court, the parties have debated the sufficiency of the evidence found in the transcript. (Compare RB 31-33 and ARB 29-31.)

    In short, the controlling logic of Apprendi is that a defendant is entitled to a jury trial with respect to "‘the assessment of facts’" which will lead to a longer sentence than the statutory maximum for the offense alone. (Apprendi, supra, 2000 D.A.R. at p. 6754.) Here, a factual question was presented regarding the conduct underlying appellant’s prior conviction. As a result, the trial judge erred by making his own factual finding. As a result, his finding must be disregarded. Since the jury’s finding is not supported by substantial evidence, reversal is required.

    Finally, it should be noted that recent authority holds that a retrial of the prior conviction allegation is barred under the principles of res judicata and law of the case. (People v. Mitchell (2000) 81 Cal.App.4th 132, 136.) Thus, this court should direct the trial court to resentence appellant under the determinate sentencing law.

    For the reasons expressed in all of appellant’s pleadings, the judgment should be reversed in case number 000000. In the alternative, the true finding on the Penal Code section 12022.7 enhancement must be reversed and a new trial ordered. At the very least, the true finding on the prior conviction from San Francisco County case number 000000 must be reversed with directions that appellant be sentenced to a determinate term pursuant to Penal Code section 1170, et. seq.

Dated: July ___, 2000

Footnote 1: The present California rule is that a defendant has no right to a jury trial with respect to the nature of a prior conviction. (People v. Kelii (1999) 21 Cal.4th 452, 454.) Obviously, Apprendi calls the validity of this holding into question. Moreover, it is possible that the California Supreme Court is itself reconsidering Kelii. (People v. Epps, S082110, rv. granted November 17, 1999; issues expanded to include the effect of the 1997 amendments to Penal Code section 1025 on a defendant’s right to a jury trial on prior convictions.)

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BRIEF NUMBER 4:

A. Facts/Introduction

    Appellant was sentenced to three consecutive terms of 15 years to life for three convictions of section 288 subdivision (a), against Patricia Z., Jennifer Z. and Jessica S., under the so-called "One Strike Law." (CT 197; People v. Rayford (1994) 9 Cal.4th 1 , 8 [§ 667.61 is commonly known as the "One Strike" law].) Appellant contends that the life sentences imposed under these sections must be stricken, because the jury was inadequately instructed regarding crucial elements of the penalty statute, thereby abridging his right to trial by jury. (See, Apprendi v. New Jersey (6/26/00) 2000 CDOS 5061 .)

    The One Strike law seeks to punish the commissions of specified sex offenses under specified aggravated circumstances. (People v. Ervin (1996) 50 Cal.App.4th 259 , 264.) Listed among the specified offenses is a violation of section 288, subdivision (a), when the offender is not eligible for probation under the circumstances specified in section 1203.066. [Footnote 1] (§667.61, subd. (c) (7).)

    Section 667.61, subdivision (b) provides that a person convicted of one of the listed offenses under of the aggravated circumstances listed in subdivision (e) shall be sentenced to a term of 15 years to life in a state prison. (§667.61, subd. (b).) "[A] person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (a) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years..." (§ 667.61, subd. (b).)

    The jury was instructed regarding its obligation to make a finding relative to the section 667.61, subdivision (b) allegation as follows:

It is further alleged at the time of the commission of the crimes charged in Counts I through XIV that the defendant did commit acts set forth in section 667.61 of the Penal Code. ¶ If you find the defendant guilty of the crime charged in Count I through XIV, you must then determine whether or not the truth of this allegation has been proved. To prove the allegation it must be established that the defendant has been convicted in the present case of committing a violation of Penal Code Section 288 against more than one victim. The People have the burden of proving the truth of this allegation beyond a reasonable doubt. (RT 466.)

    Appellant contends that this instruction omitted a key element which defines whether or not section 667.61 is applicable to multiple victim convictions of 288 subdivision (a)--whether or not appellant qualifies for probation under subdivision (c) of section 1203.066.

B. The Court Had The Sua Sponte Obligation To Submit The Factual Issue Of Section 1203.066 Probation Eligibility To The Jury

    "Even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668 , 773, cert. den. ___ U.S. ___ [118 S.Ct. 116, 139 L.Ed.2d 68].) It is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence; and (2) to give explanatory instructions when terms used an instruction have a technical meaning peculiar to the law.

    A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution's case. (People v. Reynolds (1988) 205 Cal.App.3d 776 , 779 (citations omitted.).) The trial court must ensure that the instructions adequately state the law and adequately assist the jury in resolving the issues addressed by the instructions. (People v. Kay (1984) 153 Cal.App.3d 888 , 898.) This is true regardless of whether the instruction pertains to a crime, a defense, an enhancement, or a "penalty provision." The United States Supreme Court has recently written:

The question whether Apprendi had a constitutional right to have a jury find such [racial] bias [which will increase his sentence for the crime charged] on the basis of proof beyond a reasonable doubt is starkly presented. [¶] Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227 (1999) , construing a federal statute. We there noted that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment , any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.

Merely using the label "sentence enhancement" to describe the latter surely does not provide a principled basis for treating them differently. [¶] At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without "due process of law," Amdt. 14, and the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury," Amdt. 6.[fn. omitted] Taken together, these rights indisputably entitle a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995) ; see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) ; (Winship, 397 U.S., at 364 ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").

...

If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not-at the moment the State is put to proof of those circumstances-be deprived of protections that have, until that point, unquestionably attached. (Apprendi v. New Jersey, supra , 2000 CDOS 5061.)

    Appellant contends that under the unequivocal language of Apprendi, that instruction is required on not just whether or not appellant suffered multiple convictions of section 288 subdivision (a), but also the threshold question of whether appellant was eligible for probation under section 1203.066. While normally probation issues are left to the discretion of the court, in this instance the very specific criteria of section 1203.066 dictate whether or not appellant's sentence will be subject to life terms or the determinate sentencing scheme of section 1170.1 's significantly lesser terms. Since the legislature has defined the penalty for multiple violations of section 288, subdivision (a) by resort to these factors, [Footnote 2] under the Apprendi analysis, the probation issue must be submitted to the jury.

    If appellant meets the criteria of section 1203.066, he does not come within the terms of section 667.61. This factual determination does not divest the court of its discretion to sentence a defendant to prison or to admit him to probation, it merely decides whether or not such defendant will be subject to the One Strike Law.

C. Reversal Of Appellant's Conviction Is Required

1. The Error Is Reversible Per Se

    Where an instruction or omission wholly removes all the elements of the charge from the jury's consideration, thus resulting in the jury's failure to make a factual determination of an element of the offense, the error is reversible per se notwithstanding defendant's failure to "dispute the existence of the predicate facts and that the evidence overwhelmingly established all the elements of [the charge] ...." (People v. Cummings (1993) 4 Cal.4th 1233 , 1316; see also Osborne v. Ohio (1990) 495 US 103 , 123-25 [109 LEd2d 98].)

    In the present case, there is no doubt that the issue of appellant's probation eligibility under section 1203.066, was not only not submitted to the jury, but neither pled nor proven in any manner in these proceedings. (CT 3-13; RT 543.) The prosecutor mentioned this fact during sentencing, stating: "...I'm not sure 1203.066 applies here, since it wasn't an allegation alleged, and I think it's required to be pled and proved." (RT 543.) Thus, there is no doubt that there has been a complete failure to have the jury consider any of the issues relating to some very key factors which would establish the basis for application of section 667.61 to appellant's sentence. Under this analysis, reversal is required as a matter of law.

    Appellant is cognizant that the United States Supreme Court has recently held that the failure to instruct on an uncontested element of the charge is not reversible error per se. Rather, the error will be considered reversible if "the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." (Neder v. U.S. (1999) ____ US ____ [144 LEd2d 35; 119 SCt 1827].) In other words, "where a defendant did not, and apparently could not, bring forth facts contesting the omitted element," the error may be considered harmless.

    On the other hand, Neder implies that the failure to instruct on a contested factual issue is reversible error. This analysis comports with the analysis in People v. Flood (1998) 18 Cal.4th 470 which similarly suggested that the failure to instruct on an element that is factually contested is reversible error. Flood overruled the California reversal per se standard of People v. Modesto (1963) 59 Cal.2d 722, as to the failure to instruct on an element of the charge. Because the omitted instruction in Flood concerned "an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant's own actions or mental state..." (Id. at 507), the court held the error to be harmless. In so doing, the court concluded that "no rational juror, properly instructed, could have found [in favor of the defendant as to the omitted element]." (Id. at 491.) However, Flood is not dispositive of the issue when a contested issue is involved.

    Flood also concluded that the error was harmless under the federal standard. (Id. at 507.) Note that Flood limited its federal constitutional analysis to due process without discussing the Sixth Amendment right to trial by jury which is also implicated by removal of an element from the jury's consideration. (See U.S. v. Caldwell (9th Cir. 1993) 989 F2d 1056 .)

    In the present case, as will be discussed in more detail below, there was significant evidence in the record supporting a probation finding within the language of section 1203.066 as to two of three victims, Jennifer and Patricia. Since section 667.61 is only applicable to appellant if there are multiple victims who come within the terms of this statute, if appellant is eligible for probation within the meaning of section 1203.066 as to two of the three victims, he does not fall within the terms of section 667.61 sentencing. Most of the evidence presented that would pertain to this issue was presented during the prosecution's case-in-chief. Thus, in that vein, it could be argued the probation issue was "contested," insofar as there was evidence which could or could not have established such eligibility. However, the defense did not argue the issue and essentially remained mute when the trial court referred to appellant's ineligibility for probation during sentencing, in a brief and conclusory fashion. (RT 543-544.)

    Whether or not this court determines that the error is reversible per se, reversal is nevertheless required under the federal Chapman standard of review. (Chapman v. California (1967) 386 U.S. 18 , 24.)

2. The Error Is Reversible Because The Prosecution Cannot Prove Beyond A Reasonable Doubt That The Error Did Not Contribute To the Result Obtained

    "Trial by jury is an inviolate right...secured to all...[i]n criminal actions in which a felony [or misdemeanor] is charged." (Cal.Const Art I, §16 . (See also US. Const. Amends VI, XIV .) The United States Supreme Court has written, "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 U.S. 358 , 364, 25 L.Ed.2d 368, 90 S.Ct. 1068.) Jury instructions which relieve the government of this burden violate a defendant's due process rights. (See Francis v. Franklin (1985) 471 U.S. 307 , 85 L.Ed.2d 344, 105 S.Ct.1965; Sandstrom v. Montana (1979) 442 U.S. 510 , 61 L.Ed.2d 39, 99 S.Ct. 2450.) Where instructional error is of such a nature as to violate federal constitutional rights, the "burden shifts to the state ''to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Chapman v. California, supra, 386 U.S. 18 , 24.)

    In the present case, the prosecution is unable to meet that burden. During the time in question two of the three victims were related to appellant by marriage. Angela met appellant at her brother's wedding to appellant's daughter. (RT 88.) Additionally, the girls had resided in appellant's household, and even though were not living there with their mother during the time in question, Angela had sought appellant's help to care for them during that period because she had broken her leg. (RT 99, 100.) Thus, the girls were relatives and appellant could be considered a caretaker, as well as a household member.

    While at first blush, it might be difficult to consider that probation would be in the victim's best interests, the decision must be made in the context of these girls' known histories. Initially, the fact that appellant was convicted of molesting them should not be a controlling factor because otherwise, section 1203.066 would never have any application to any child sex offenders. Such an application would render the statute meaningless.

    The record suggests that appellant's home was the only stable residence they had known for a considerable segment of their lives. As the prosecutor acknowledged during his closing argument, Angela was better off if appellant were not guilty of these charges, because of his help in her many times of need. (RT 516.) The prosecutor recognized that Angela relied on appellant to care for her kids so she would not have to and was her "meal ticket." (RT 516.) The unfortunate truth in this situation is that there was ample evidence that these children had been neglected for years by their apparently drug-addicted mother and had been taken from one poor environment to another. Angela had lived at a string of locations, including with two different men with whom she was involved in a relationship. (RT 89-90.) Angela lived with appellant for several months after her brother's wedding. She then lived with Mr. H, and then Mr. W. (RT 90, 92.) She was homeless when she was arrested for possession of amphetamines in May of 1997. She was in jail for 10 days, and moved into appellant's home for the second time after she was released from jail. (RT 93, 97.) She moved into another place of her own, which subsequently burned down. Both Angela and her children stayed with appellant after this fire. (RT 95, 98.)

    Angela then moved into another residence. She subsequently broke her leg, and again relied on appellant to take care of her children. Appellant routinely picked them up and took them to his home to swim. Angela had broken her leg one to two months before appellant had been arrested for these charges. (RT 99, 100.) Appellant acted grandfatherly toward kids. (RT 111.)

    The girl's mother acknowledged without any hesitation that she frequented the Four Corner's Bar regularly with these two girls, so they could play pool and darts. Angela had taken her kids here at the same time appellant had planned on meeting Mr. C the day of his arrest. Angela thought the location was a good place to take her girls. (RT 313-315.)

    Angela denied that she was considering the offer made by Mr. U or that she had gone to the bar to meet appellant. (RT 314, 315.) Her own brother, Mr. U, said that Angela was in fact considering accepting the offer of money and a van. (RT 260-262.)

    Angela's children had been molested previously by their biological father. (RT 307.) The physical evidence suggested that their prior molestations may have been more invasive than the current allegations, inasmuch as the physical findings supported more serious abuse than they were reporting to anybody at anytime. (RT 216, 220.)

    The girls were already being supervised by a public health nurse, suggesting the county had already intervened on their behalf due to their mother's neglect or incapacitation by her incarceration. (RT 80.) Thus, there is a real issue as to whether these children were better off with appellant incarcerated.

    There is in fact evidence suggesting appellant's eligibility for probation under section 1203.066. As such the prosecutor cannot prove beyond a reasonable doubt that the court's failure to instruct on this issue was harmless beyond a reasonable doubt.

Footnote 1: Section 1203.066 provides, in relevant part, that:

    (c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:

(1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the victim's household.

(2) A grant of probation to the defendant is in the best interest of the child.

(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.

(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. . .

. . .(5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant.

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Footnote 2: Note that all other offenses that are listed in section 667.61, subdivision (c) are only defined by a violation of the offense, without reference to other, limiting criteria. Thus, other offenses that come within the terms of the One Strike statute are necessarily decided by a jury, since all elements of the offenses listed in subdivision (c) (1) through (6) are the only criteria for inclusion within the terms of this statute.

Section 667.61, subdivision (c) provides:

    This section shall apply to any of the following offenses:

(1) A violation of paragraph (2) of subdivision (a) of Section 261.

(2) A violation of paragraph (1) of subdivision (a) of Section 262.

(3) A violation of Section 264.1.

(4) A violation of subdivision (b) of Section 288.

(5) A violation of subdivision (a) of Section 289.

(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

(7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.

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